Selling a Dream at the Cost of Reality

Some ideas are good ideas. But sometimes people’s belief in those good ideas can, whether through over-enthusiasm or for other reasons, lose sight of reality. And that can cause problems.

One good idea is that of presumed liability. But has Road Share, the campaign for presumed liability in Scotland, lost sight of reality?

What is presumed liability?

You might have heard of “presumed liability” (or of “strict liability”, which, as we’ll see, is slightly different). But it is often misunderstood by the public and misrepresented in the media, so before we get going, it’s important to be clear on what presumed liability is.

Fundamentally, presumed liability sets out a default allocation of liability in a multi-party collision. Presumed liability in the context of “vulnerable” road users is based on mode of transport and presumes liability to lie with users of heavy, fast, and/or mechanically powered vehicles; but note that other forms exist: we’re probably all familiar with the way in which the motor insurance industry has, of its own volition rather than through legislation, streamlined its handling of “hit from behind” collisions: the driver of the rear vehicle is presumed liable (but has the opportunity to contest this: such is the difference between presumed liability and strict liability, which—rather broadly speaking—offers no such opportunity).

There is no prescribed way in which “mode-based” presumed liability must be implemented. Different countries implement it in different forms, with different nuances. For example, it is possible to distinguish a pedal cyclist and a pedestrian as different modes and apply presumption of liability to a collision involving the two, but it is equally possible to give them equal status and presume liability only for users of mechanically propelled (ie motor) vehicles, thus not applying presumed liability to a pedestrian-cyclist collision.

Perhaps the most important point to note, however, is that presumed liability relates purely to civil liability. It does not impinge in any way upon criminal culpability. It has no meaning whatsoever in a discussion of criminal prosecutions.

Note that there is nothing about presumed liability that seeks to actually alter any party’s true liability. No-one suddenly becomes liable where they were previously not. It is merely a change to the starting position, which translates to a shift in the burden of proof.

Where presumed liability can help

Presumed liability is of direct help in only one scenario: where there has been a collision and one party seeks to recover damages from another, and where this latter party is presumed liable under whatever implementation applies.

There are many stories of people who have had their property damaged, who have been injured, or who have lost relatives due to being struck by motor vehicles, and who have found the process of claiming damages to be lengthy, obstructive and/or expensive. All of these people would benefit from presumed liability legislation.

These merits of presumed liability have been long discussed, and I do not wish to reiterate those discussions. Personally, I am in favour of presumed liability: it is a small measure, but it is firmly in line with redressing the balance in terms of the use of starkly different modes of transport, which is an important and worthy aim.

A key question

“A key question for this research is whether or not a better safety record can be achieved without a legislative framework better protecting walkers and cyclists.”

…yet the document does not tackle this question at all. (Also, the statement begs the question: Does presumed liability actually constitute better protection?)

This question can’t actually be answered by looking at the data provided in the document, because the provided data only cover a period (c. 2004 onwards) where presumed liability laws had already been introduced in the safer countries.

To answer this “key” question, you’d be well advised to look at historical data for one of the safest cycling countries, the Netherlands. As David Hembrow points out, the Netherlands’ liability law was introduced in the 1990s, postdating their move to safe infrastructure by two whole decades: this shift in road design began at the start of the 1970s. This means that we can answer Road Share’s “key question” by asking: How safe was cycling in the Netherlands in the early 1990s?

It’s quite apparent that until the late 1970s cycling was in decline while deaths were on the rise, but both trends were emphatically reversed from 1978 onwards. Not only did deaths fall dramatically, but they did so at the same time as cycling became much more popular. And remember: the 1970s was the decade in which the Netherlands’ enviable infrastructure grew from nothing, not the time when strict liability was introduced.

Now take a look at the early 1990s, and the period following the introduction of strict liability. There is no noticeable change in the already established trends. But in any case, the “key question” has already been unequivocally answered. The answer is yes: a better safety record can be achieved without a legislative framework better protecting walkers and cyclists”.

Correlation is not causation; and this isn’t even correlation

Road Share make bold claims about the ability of presumed liability to cause an increase in walking and cycling. The following tweet, for instance, states that “more than anything else, this measure will make our roads feel safer and so help people to become more active travellers”. Regardless of whether you take that to mean “presumed liability more than any other measure” or “making roads feel safer more than any other effect”, this is at best conjecture and at worst complete fabrication.

In the following tweet, they state that “presumed liability is necessary to increase levels of walking and cycling safely”. However, as above: data from the Netherlands clearly show (should one choose to actually look at the data) that it’s absolutely not necessary. This claim is simply untrue.

This faith in presumed liability isn’t restricted to Road Share. Earlier this year, cycling journalist Laura Laker wrote in the Guardian that, “The [Dutch] success of cycling…is a reality we could have in the UK if we had the investment in infrastructure and, I would argue, the liability laws.” At least it’s explicit about the need for infrastructure (a point on which Road Share appear to agree, albeit not explicitly campaigning for it—and, indeed, naming their entire campaign in such a way as to obscure it completely), but there again is this blind faith that presumed liability is a significant, even necessary, factor in encouraging cycling.

Ask around your family or your colleagues. Find someone who doesn’t cycle on the roads. Tell them that if they cycle on the road and someone drives into them, they will be more easily able to claim compensation, and ask them if they have now changed their mind and are now happy to cycle on the roads. If you can find someone who says yes, let me know in the comments and I will send you a unicorn.

Road Share’s main justification for this claim, both in the research document and on Twitter, appears to be this table.

https://pbs.twimg.com/media/CUQ3q93VEAAxter.png

Road Share tend to express their point as follows:

“There is a clear and strong association between Presumed Liability legislation and higher levels of safe walking and cycling. All countries with high levels of safe walking and cycling have some form of Presumed Liability legislation.”

The latter statement is true, but it completely overlooks the point that many countries with low levels of safe walking and cycling also have some form of presumed liability legislation. Indeed, France’s “Loi Badinter”, introduced in 1985, is one of the bolder liability laws, but France’s figures for modal share and fatality rates are very similar to those of the UK. Spain has presumed liability, but as figure 2.2 in Road Share’s own document shows, its fatality rates run at around three times those in the UK.

Road Share’s statement also overlooks the point that the three countries in the table which have high modal share and low fatality rates for walking and cycling—Denmark, the Netherlands and Sweden—are the three countries which most people would recognise as the worldwide leaders in cycling infrastructure.

This is an extraordinary display of confirmation bias. It’s not merely a crude mashing-together of a predetermined conclusion and some data; it’s not even cherry-picking data to fit a belief. It’s a statement paraded atop a set of data which manifestly doesn’t back it up in the slightest, and it’s all done with seemingly wilful ignorance of other obvious hypotheses which the same data does back up.

The dream of behavioural change

This brings us to Road Share’s other claim: that a change to liability laws causes a significant change in driver behaviour. There’s no evidence for this (even the appendices of Road Share’s own document allude gently to the overwhelming number of confounding factors) so if we are to place any rational trust in it, we are left to test it on logic alone.

In order to effect behaviour change for any given driver, the following would all need to be true:

the driver is aware of a change in consequences of a collision

the driver previously believed the consequences of a collision not to warrant what they consider to be their safest practicable behaviour

the driver believes the consequences of a collision now warrant safer behaviour

the driver is either mindful of this at all times, or has changed their behaviour through a process of self-habituation

Remember one of the key points about presumed liability: it only changes the default allocation of liability and shifts the burden of proof. It may make the compensation process easier for victims, and it may empower people to claim for small amounts where they otherwise might not bother, but fundamentally there is no sea-change in consequences of a collision. Is this really the sort of thing that focuses a mind that would otherwise wander?

In any case, drivers are required to have dedicated third-party liability insurance: this, clearly, covers their liability. The only consequence of a claim is a rise in insurance premium. A consequence, yes, but in the majority of cases premiums rise after non-fault claims and even non-claim incidents, so the burden of colliding with someone after the introduction of presumed liability laws may not even be greater than that of doing so beforehand. It is questionable in the extreme as to whether presumed liability offers even the slightest additional potency as a deterrent.

Then of course, perhaps the driver has no insurance. In this case the chances of recovering costs may be slim anyway, and it’s fair to postulate that those who have no regard for the basic legality of driving will have similarly little response to this small change in the law.

This claim of improving behaviour is baseless. It is, just as with the claims of changes in modal share, at best conjecture and at worst complete fabrication.

A cart of snake oil

But I know what some of you are thinking: Come on, this is an over-reaction. Maybe the claims are fanciful, but they’re not harmful. If it doesn’t achieve it all then nothing’s lost. It’s better than nothing, right?

Presumed liability is being sold as an intervention which can—quite independently—save lives, change driver behaviour, and make people decide to take up cycling on the same carriageways that they currently don’t want to cycle on. And there’s no evidence that it can do some of these things: the evidence suggests it can’t, and logical checks agree.

This means that the time and effort that politicians spend looking at presumed liability, and the time and effort that campaigners put into demanding it, is time and effort that is believed to be spent on reducing road danger and increasing safe, healthy travel.

But it’s snake oil. The evidence is clear that this is not what presumed liability achieves. Which means that selling it in this way can only obstruct interventions that can achieve these goals: either because the finite resources of legislation have been frittered away on a pipe dream, or—for the more cynically inclined—because anyone with a vested interest in suppressing unpowered transport will take one look at the evidence and get right behind this, on the basis that they’re able to be seen to be helping when they’re actually acting in their own interests. The concept of “Road Share” has, as worldwide data from the last century indisputably shows, proven extremely effective at suppressing cycling and (to a lesser extent) walking: the motor vehicle is a fearsome and indefatigable neighbour on the road. It may be counter-intuitive (which only adds to its effectiveness), but sharing is the philosophy of the motor industry and of questionable quasi-cycling organisations like the Amy Gillett Foundation, because when people are forced to choose a vehicle with which to venture into busy flows of heavy machinery, the result is inevitable: they choose more heavy machinery.

Maybe you still don’t think this misrepresentation is obstructive to the proven measure of dedicated infrastructure. But perhaps there are few clearer illustrations that it is than a single letter from Brenda Mitchell, founder of the Road Share campaign, who wrote to The Scotsman to defend Alastair Dalton’s bizarrely self-contradictory opinion that “dedicated cycling lanes don’t work because cyclists don’t fit with other vehicles or pedestrians”—a fairly explicit dismissal of infrastructure, no? To add insult to injury, she went so far as to say “we should look at what has happened in neighbouring European countries”—advice that seems more than a little rich when the evidence is clear that in France, where strict liability was introduced without dedicated infrastructure, the status quo is barely distinguishable from that of the UK; whilst in the Netherlands, where strict liability was introduced after two decades of building dedicated infrastructure, the status quo is completely different.

Ironically, Road Share would do well to heed its founder’s own advice: if one actually looks at the evidence from our neighbours, then the clear message is to abandon demands for presumed liability for some time and focus on other things instead. The Netherlands is the success story; France is not. So why is Road Share’s advice to copy what France did?

Sure, let us in time have presumed liability: it is A Good Thing. But let’s not put the cart before the horse. Let’s not fill the cart with snake oil. And, above all, let’s not leave the horse redundant by expending time and energy pushing a cart full of snake oil into the corridors of power.

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Comments

A well thought out piece and I agree with your argument that it it takes time and energy away from the bigger, more real issue.
However, interms of cycling infrastructure, particularly outside London Village, we are at slightly above zero. It will take decades of political will to change things radically, so we need some small victories along the way and presumed liability is an easy win.
What I really want is a system where vehicle drivers wont behave recklessly ans agressively around cyclists because they have a very genuine fear that they will go to prison for a long period, if they badly hurt or kill one.
Motorists (and I’m one as well) generally live a motorised life without consequences. You only have to look at the number of drivers using a hand held phone to see that. You would have to very unlucky to go to jail for killing somebody with a car.
If we live in an overly selfish society, you can’t rely on the good nature of everybody, so you have to have a system where actions have consequences.

Yes, I should reiterate the point that I’m not arguing against presumed liability per se (though I’m certainly unconvinced that it’s the right time for it).

There are three goals that are touched upon in this article:

justice for victims

casualty reduction

increased use of unpowered transport

All three are worthy goals. But there is no evidence that presumed liability helps in any way to achieve the second and third of these (one of which actually seeks to directly reduce the need for presumed liability). My complaint is that to claim otherwise is to hinder the achievement of these goals.

“What I really want is a system where vehicle drivers wont behave recklessly ans agressively around cyclists because they have a very genuine fear that they will go to prison for a long period, if they badly hurt or kill one.”

Yes! But that’s the criminal system, not the civil one. Victims have no say in criminal prosecutions or sentencing. What we need is police who are willing and able to collect evidence properly, a CPS that is willing to prosecute, judges and juries willing to put public interest to the forefront rather than thinking “there but for the grace of God…”, and then sentencing structures that BITE.